Safeguarding procedural fairness or imposing excessive legalism?

UKAJI is publishing a series of blog posts about the Court of Appeal decision in Miller v Health Service Commissioner [2018] EWCA Civ 144 (February 2018), which identified a number of failures in the investigation by the Health Service Ombudsman for England. This first post, by Richard Kirkham, considers what the judgment tells us about judicial approaches to ombuds’ decision-making.

By Richard Kirkham

In the recent case of Miller v Health Service Commissioner the Court of Appeal (CA) quashed a decision of an ombud to uphold a complaint as to the quality of care provided by two GPs. The Health Service Commissioner (the Ombudsman) found that with appropriate care the patient’s death could have been avoided.

The legal issues involved in the case are dealt with expertly in blogs by Bevan Brittan and Kingsley Napley. This post reflects upon Miller’s long-term implications for the investigation of health complaints and provides some reflections on what this case tells us about the approach of the judiciary towards ombudschemes, which is one of the areas of inquiry being pursued in a current Nuffield Foundation funded project.

The function of judicial review

A perennial question in administrative law generally, and in the case law that has grown around watchdog institutions such as the ombud in particular, is the extent to which the court should place restrictions on the broad and often weakly-defined discretionary powers that are conferred on them. This is a global debate (see, for instance, this fascinating Canadian symposium) and is underpinned by fundamental differences of opinion as to the extent to which we are comfortable with (a) trusting administrative bodies to be the interpreters of their own discretionary power and (b) the judiciary providing control through extended interpretations of legislation and refinement of legal doctrine.

The major pattern in the case law on ombudschemes is that the courts tend towards deferring to the specialised expertise of the office. But simultaneously the courts have always guarded jealously their right to exercise control, and there is a minority body of cases in which the courts have been prepared to advance the law and tighten the expectations of ombudsman decision-making. Miller is the latest instance of this reserve judicial authority being exercised.

Three potential strategies by which the judiciary exercise control are considered in turn in this post.

Statutory interpretation

The stock function of judicial review is to test for ultra vires. In only one respect did statutory interpretation resolve the Miller case, and this was an uncontroversial deployment of the court’s powers of interpretation. Contrary to the Administrative Court (AC), the CA found that the Ombudsman had not complied with the Health Service Commissioners Act 1993 Act, s.11(A) requirement that the investigated party has ‘an opportunity to comment on any allegations contained in the complaint’. On the facts one of the GPs investigated had not been given this opportunity prior to the decision to investigate [43-5].

In Miller, the interpretation of the legislation was notably restrained and there were no expansive interpretive endeavours to place new limits meaning on the discretionary powers of the office as conferred by legislation (on the dangers of this approach, see Kirkham).

Procedural fairness

There are a number of doctrinal routes through which the court can find flaws in the legality of ombud decisions, and in doing so clarify and/or advance the expectations on ombudschemes when making decisions. One area where the court has long claimed authority over administrative discretion is in being the arbiter of procedural fairness, and in imposing common law standards that go beyond the strict wording of the relevant statute.

In terms of procedural fairness, the CA in Miller found that the Ombudsman had erred in two key respects.

First, the common law requires parties to a decision to be given adequate notification in circumstances where their interests might be infringed. On this point, the CA applied a more rigorous common law standard of notification than the AC. Given that the potential reputational damage to the GP from the investigation was high, it found that the standard of fairness that should be expected should also be high. Thus the court decided that fair process required (a) that the Ombudsman provide sufficient information and opportunity to allow the investigated party to inform the decision to commence an investigation and (b) that the information provided should include a copy of the complaint itself. In both respects the Ombudsman fell short, with the judgment describing the Ombudsman’s approach ‘as poor practice in the field of administrative adjudication’ [38].

Up to this point, the CA’s ruling suggests little more than an incremental refinement of known law on ombudschemes. The two tests outlined above as to what procedural fairness requires are predictable and clear.

Where the judgment becomes more ambitious, and might have longer term implications, is in its interrogation of the later stages of the decision-making process. As per standard practice, the Ombudsman gave the parties an opportunity to comment on its draft report. The CA, however, found that at this stage also the Ombudsman should have gone further. Despite the lack of statutory guidance on the matter, the CA found that:

… the appellants must be able to respond to the allegations and in this case that necessitated disclosure of the medical evidence upon which the ombudsman relied coincident with the delivery of the Draft Report. … Furthermore, although there is no necessity for there to be general disclosure the ombudsman must be alive to the imperative that she must also disclose evidence that tends to exonerate the appellants.

This expectation was described as ‘an elementary component of procedural fairness’ [49]. What this judgment is saying, therefore, is that it is not sufficient to use the report to detail the reasoning and evidence considered; on occasion it is also necessary to provide copies of relevant evidence.

At first sight this sounds like a reasonable requirement, but when considering all ombud investigations this is potentially a big step forward in ombud practice and will raise delicate questions as to what, if any, evidence can be withheld from the parties. Differently construed, as it will be by the rival parties involved, all evidence might be deemed to support an argument in favour of either party. Plausibly, the higher standard of disclosure might be expected only where an individual’s professional reputation is at risk, but this situation could cover a wide array of scenarios.

The difficulty in assessing when a document should or should not be disclosed is evident in the lengthy discussion of the matter in the judgment, which covered a series of documents produced at different stages in the process, with the court finding that some should have been disclosed and others not [48-52]. What we have, therefore, is a very loose standard being laid out by the court in Miller, and there is a risk that the CA’s expansion of the procedural fairness obligation in this regard will encourage further litigation and uncertainty, and possibly cost, to the ombud process.

Challenging the substance of decisions made

There are a number of options by which the court can find flaws in the substance of an ombud decision, and several were displayed in the Miller case.

Preferable alternative remedy?

A common area of tension in an ombud’s work is deciding whether it is reasonable to accept the complaint where an alternative remedy is available. As in JR55, this aspect of the case created tension because of the background potential for a financial remedy being recommended, something which the medical profession has previously argued should be properly considered through clinical negligence claims. A positive feature of the judgment is that the CA did not overturn the AC’s ruling that the Ombudsman is entitled to recommend financial compensation to reflect losses that result from injustice [34], a stance which respects existing practice in the sector. But the judgment does neuter the potential for such an outcome as a result of the approach it recommended for considering the reasonableness of pursuing alternative remedies. The CA found that the Ombudsman had erred in law, and effectively not made a decision, by not undertaking or evidencing a full assessment of the reasonableness of the complainant pursuing alternative remedies [83-92]. It is not entirely clear from the judgment what degree of detail would have satisfied the court that a full assessment of the matter had been made, but much more than some other cases on the suitability of alternative remedies (eg Liverpool City Council), the judgment implies the need for ombudschemes to provide well-evidenced grounds on the non-suitability of alternative remedies. This point is not detailed in the legislation, but the CA’s ruling marks out more space for the judge to scrutinise the rationality of ombud decision-making.

Pre-determination

In Miller, the CA found that a fair-minded observer ‘would conclude that there was a real possibility that the investigation was biased by pre-determination’ [57]. In all the reported case law on the ombud, this is the first time that a bias argument has been successful, and was based upon an extended scrutiny of the correspondence provided by the Ombudsman during the course of the investigation and in particular the draft report. For some ombudschemes, this application of a ground of ‘pre-determination’ may fundamentally alter the purpose of issuing draft reports away from verifying facts and advancing a provisional view, towards offering a more nuanced post-investigation position. It may even imply the need to add a further stage into the process.

[T]he provisional evaluation should clearly admit there may be other explanations and opinions that the Ombudsman has yet to consider. Draft reports and/or covering letters must make it abundantly clear that the findings are provisional and that the parties are able to make submissions and submit/rely upon their own evidence (such as expert evidence) in reply. Any final decisions then issued should make it clear how any such further submissions have been considered and the impact if any they have had on the final decision and the reasons why (Bevan Brittan).

Irrational standards applied

Finally, the CA interrogated the standards upon which Ombudsman made her decision (standards obtained from clinical best practice), and found that she had inadequately defended the standards of good practice chosen to an extent which the court ruled irrational [67-92]. Given the lack of legislative detail on the standards that an ombud is entitled to apply, this finding will sow considerable doubt within ombudschemes.

Analysis

Trying to find predictable patterns in the case law is not easy, but a few observations can be made. First, there have now been just over 100 reported cases involving ombudschemes in the UK that have reached a full hearing (not including those involving the Pensions Ombudsman). Of those, most of the boldest attempts of the judiciary to add new obligations onto existing ombud practice have been undertaken by the higher courts (eg Croydon [1989] 1 All ER 1033, Cavanagh,JR55). Other innovatory expansions of the law can also be attributed to the Court of Appeal (Bradford [1989] 1 QB 287 agreed that judicial review of an ombud was permissible; Eastleigh [1988] QB 855 and Bradley placed restrictions on how public bodies can respond to decisions of an ombud). Miller matches this pattern.

Secondly, the medical profession has been a key player in persuading the judiciary to push the boundaries of their powers in order to impose tighter procedural obligations on the office (Cavanagh, JR55 and Miller). This latter observation may simply be a reflection of the power of resources that the medical profession possesses, but this could also be indicative of a protectionist approach, one of resistance to the oversight of the ombud and expressing a preference for standards of negligence as overseen by the courts to the ‘failure in service’ remit that has been given to the ombud.

But an alternative analysis is that the ‘failure in service’ remit represents the borderline of the ombud’s potential, particularly in the health sector where a vocal ombuds user community expects more complaints to be upheld. As Miller demonstrates, to deal with this mandate to the expectations of both sides means delivering high standards of process, but the higher the procedural expectation the less realistic it becomes for the ombud to operate as a high-turnover adjudicative body.

Whether Miller has a major impact beyond health investigations remains to be seen, for as the CA noted procedural fairness obligations are highly context dependent. But whilst the judgment is questionable in the degree of scrutiny it undertook of the substance of the Ombudsman’s decisions, Miller is a sufficiently strong decision to withstand appeal and is likely to influence the way that all ombudschemes organise their complaint handling. The result may be an enhanced transparency and procedural fairness in decision-making, but it also creates incentives to conservativism and adds further burdens to the decision-making of the ombud. For instance, one rational response to Miller would be to adopt a model of deeper and more procedurally rigid investigation, but to manage the workload by simultaneously filtering out more complaints at an early stage.

About the author:

Richard Kirkham is an academic from the University of Sheffield who specialises in public law, administrative justice and the ombudsman. He can be followed on his blog ‘Thinking About Administrative Justice’ and Twitter @RichardKirkham7

Discussion

It’s my opinion that ‘the public’ can’t win. There is too much stacked against this happening. I would like to see all Ombudsman dispensed with thereby bringing a huge saving to the public purse.

Legal Aid could then be reintroduced.

It would not cost more to the public purse then the millions already spent on Multi Ombudsman services, I’m not sure how many there are, but PHSO alone has a budget of 34 million per year. Add in all the other Ombud Services and the saving will be very great.

Legal Aid would bring about a fair opportunity for ALL people to get justice. Not simply those with insurance or deep pockets. Justice must be for all people in our civilised country which, we are told, is the 5th richest in the world.

It would enable ‘lessons to be learnt’ as authorities would be held to account. Something that doesn’t happen at the moment. Complaints would then diminish and cost for complaints overall would fall.

We can then see British justice in action and have a fair appeals system in play. It something we don’t have in the Ombud system.

For those who think Legal Aid is a gravy train for solicitors, think again. Costs have to be agreed by Court and must be seen to be accountable and fair, something Ombudsman could learn.

Complainants are continually told that the Ombudsman cannot take sides and must act without bias towards either party to resolve the dispute. Being both ‘independent’ and ‘impartial’ is core to the Ombuds process according to the new Ombudsman, Rob Behrens. Yet findings from this legal case are likely to make it even more difficult for health service complainants to receive an uphold to their complaint as the balance shifts even further in favour of the public bodies. 1. This case was pushed to the Court of Appeal on the back of medical insurance funds and legal expertise. Members of the public just do not have the resources to challenge the decisions of the Ombuds in the same manner. 2. The sharing of the information relied upon at the draft report stage should be equal for both sides, giving each the opportunity to put right false analysis by the Ombuds, yet it will only be available to prevent reputational damage. To provide it only to one side cannot in any way be considered ‘impartial’. 3. The Ombuds will risk assess for reputational damage before making a final decision. This finding will deter them from making uphold decisions where legal action is threatened. Fundamentally, the whole Ombuds model is defective and arguing about quality over quantity misses the point. Don’t raise the hopes of the public that their cases will receive impartial adjudication if it cannot be delivered. Better to scrap the body altogether, save the money and save the anguish.